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Entries in NLRA
(22)

While affinity groups can be a great marketing tool for employers to attract and retain workers, as well as to foster new ideas, they can also create a great deal of legal liability. For some background, affinity groups are generally formalized groups that share similarities of some sort, whether based on life experiences, social identity, or interests. Some examples include LGBTQ and women in business groups.

The 2016 elections – local and national – have given rise to a number of complicated developments in labor and employment law. To help employers understand these changes and how to address them, Verrill Dana will host a full-day Annual Employment Law Update on Thursday, January 26, 2017 at The Westin Portland Harborview Hotel.

“While we were all focused on the minimum salary rule, courts and agencies across the country implemented changes that will affect how human resources professionals will do their job in 2017 and beyond,” said Doug Currier, Chair of the Labor & Employment Group. “This year’s conference will highlight how to navigate the ever-evolving employment landscape and best practices for addressing increasingly prevalent workplace scenarios.”

The recent week-long strike at two Jim Beam facilities in Kentucky highlights a very interesting tension in the current workplace. Workers at the Boston and Clermont, Kentucky facilities overwhelmingly rejected the second contract proposal in two weeks, stepping out on strike on October 15, 2016. The second contract proposal included “substantial wage increases” for already very well-paid employees, which left management at a quandary as to why the workers voted to strike. The workers, for their part, wanted a guarantee that the company would hire more full-time workers and stop relying as heavily on temporary workers, among other complaints with the contract proposal. The crux of their complaint was that they felt that they had to work too much and it was interfering with work-life balance.

Earlier this year, the National Labor Relations Board, in Medco Health Solutions of Las Vegas, Inc., 364 N.R.R.B. No. 115 (Aug. 27, 2016), found that a dress code policy that banned “confrontational” clothing banned federal labor law. The case, stemmed from an incident in which the Company ordered an employee to remove a t-shirt that said “I don’t need a WOW to do my job.” The WOW Program was created by the employer in 2009 and was an employee recognition program in which employees received “WOW awards” and could be featured on a “Wall of WOW” display.

The policy language at issue prohibited clothing that was “degrading, confrontational, slanderous, insulting or provocative.” The Board found that the company failed to show that the t-shirt would adversely affect the business.

As reported by my colleague Erik Peters last week, the National Labor Relations Board (“NLRB”) has again reversed course and held that graduate students at private universities may unionize. See Columbia University, 364 NLRB No. 90 (2016).

Until 2000, the NLRB consistently held that graduate students working at the universities in which they were enrolled as students were not “employees” within the meaning of the National Labor Relations Act (“NLRA”) and therefore could not unionize. The NLRB reversed its precedent in 2000 by holding that graduate students are employees under the NLRA. A change in Presidential Administration, and with it changes to the composition of the NLRB, resulted in the NLRB reverting to its prior precedent in 2004, i.e. graduate students are not employees. The NLRB, again altered by the change in Presidential Administration, has now again reversed course. While future changes to the composition of the NLRB may again bring about a ruling that graduate students are not employees, private universities should begin preparing for the consequences of this significant change.

The Casino Pauma expects employees to work while at work—a concept that is not foreign to many of us. In fact, they put the expectation into writing and placed in their employee handbook a clause which provided: “Team members are to conduct only Casino Pauma business while at work. Team members may not conduct personal business or business for another employee during their scheduled working hours.” Administrative Law Judge Robert A. Giannasi, however, in a July 18, 2016 decision found that this provision violates the National Labor Relations Act because it was overbroad and unlawfully restricted employees rights to discuss unions and engage in other protected activity during non-work time. (Casino Pauma, No. 21-CA-161832 (July 18, 2016)).

Specifically, the ALJ found that the “only business while at work” clause, “can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time.” The ALJ found the “while at work” language to be too broad “because it is not properly restricted to ‘work time,’” as set forth in the second clause.